Premises Liability When the Injured Party is Negligent

The 22-year-old woman injured at Fenway Park on May 16, 2014 was recently released from the hospital. Lizzy Scotland was injured at Fenway Park after a Red Sox game on May 16. She had fallen down an elevator shaft and landed on the top of the elevator two floors below. When the fire department found her, she was unresponsive. The precise cause of the accident remains under investigation – preliminary reports indicated that, somehow, the elevator doors on the fourth floor opened despite the fact that the elevator was actually located on the second floor.

Boston police cited Fenway Park for having “an intoxicated patron.” Although the citation does not name the “intoxicated patron” and a spokeswoman for the police said the citation “doesn’t necessarily have anything to do with the elevator incident [involving Ms. Scotland] itself,” many have speculated that Ms. Scotland was intoxicated at the time of the accident. This begs the question: What happens when a dangerous condition exists on a property, and a person is injured as a result, but the intoxication or carelessness of a person contributes to that person’s injuries?

Negligence of the Parties in a Premises Liability Case

In general, the owner of a business establishment who invites others onto his or her property has a duty to keep the property in a reasonably safe condition. If the property owner knows of a dangerous condition on his or her property – or if the owner should have known of the condition – and fails to remove or correct the condition, he or she can be held responsible for the medical and treatment costs, pain and suffering, and other expenses of those who are injured on the property.

One might think that if a plaintiff is negligent (such as by consuming too much alcohol), then the property owner is off the hook and no longer responsible for another’s injuries. But Massachusetts has addressed this situation through a statute (Chapter 231, Section 85). The statute provides the following:

Contributory negligence – that is, an injured plaintiff’s negligence or carelessness – does not prevent an injured plaintiff from recovering against a defendant unless the percent of the plaintiff’s negligence exceeds the percent of the defendant’s negligence (that is, if you are 51% responsible for the accident and the property owner is 49% responsible, you will not be allowed to recover compensation from the defendant);

Even a plaintiff who violates a criminal law, statute, ordinance, or regulation and is injured will not be barred from seeking recovery against a defendant;

A plaintiff’s award of damages can be reduced by the percentage of his or her negligence (for instance, if you were 25% negligent and your damages totaled $100,000, the judge or jury can award you $75,000 – 75% of your total award – because of your carelessness);

The burden is on the defendant to prove that the plaintiff acted negligently and that his or her negligence contributed to his or her injury – otherwise, there is a presumption that the injured person acted with due care.

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